United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON PENDING MOTIONS NO. 181, 193, 216 AND
217
TANYA
WALTON PRATT, JUDGE
This
matter involves an insurance coverage dispute between
Plaintiff Westfield Insurance Company
(“Westfield”) and Defendants TCFI Bell SPE III
LLC (“TCFI Bell”) and Bell Aquaculture LLC
(“Bell”) (collectively “Defendants”).
Currently pending before the Court are various ancillary
Motions associated with the parties' pending Motions for
Partial Summary Judgment: (1) Bell's Motion for Leave to
Incorporate by Reference Certain Portions of Its Response in
Opposition to Westfield's Motion for Partial Summary
Judgment as to Bell's Bad Faith and Punitive Damages
Claims (DKT. 189) into Its Combined Memorandum in Support of
Its Cross-Motion for Partial Summary Judgment/Response in
Opposition to Westfield's Motion for Partial Summary
Judgment (DKT. 110) (“Motion to Incorporate”)
(Filing No. 193); (2) Bell's Motion for Leave to
Supplement Its Appendix of Exhibits in Support of Its
Response in Opposition to Westfield's Motion for Partial
Summary Judgment as to Bell's Bad Faith and Punitive
Damage Claims (“Motion to Supplement Appendix”)
(Filing No. 216); (3) Bell's Motion for Leave to
File Surreply in Further Opposition to Westfield's Motion
for Partial Summary Judgment (“Motion to File
Surreply”) (Filing No. 217); and (4)
Westfield's and Non-party HSB's Objection to the
Magistrate Judge's May 25, 2018 Order on Discovery
Motions (DKT. #175) (“Objection to Magistrate
Judge's Order”) (Filing No. 181). The
Court will address these four pending Motions in turn. The
summary judgment motions will be resolved under separate
order.
A.
Bell's Motion to Incorporate (Filing No.
193)
Westfield
and Bell filed cross-motions for partial summary judgment on
the issue of whether an insurance policy issued by Westfield
provides coverage for the loss of Bell's fish under the
“Equipment Breakdown Coverage Endorsement.” In
support of its motion, and in opposition to Westfield's
cross-motion, Bell argued that the endorsement at least
creates an ambiguity, which, under Indiana law, must be
construed in Bell's favor. After the cross-motions for
partial summary judgment were fully briefed, Westfield filed
a second motion for partial summary judgment; this second
motion concerned Bell's claim for bad faith and punitive
damages. Further discovery was completed and Bell re-deposed
a representative of The Hartford Steam Boiler Inspection and
Insurance Company (“HSB”), which is
Westfield's reinsurer. HSB reinsured the equipment
breakdown coverage endorsement and played a large role in the
investigation and adjustment of Bell's insurance claim.
During
the deposition of HSB's representative, Bell learned that
some HSB adjusters previously have paid claims involving
animals despite the policies' inclusion of the
“animals exclusion, ” which is at issue in this
case. Bell learned this information in time to include it in
its response brief, opposing Westfield's second motion
for partial summary judgment, regarding the bad faith claim.
Bell asserts that this information also is directly relevant
to its argument that the equipment breakdown coverage
endorsement is ambiguous, an argument asserted in response to
the first motion for partial summary judgment. Bell asks the
Court for leave to incorporate into its response brief to the
first motion for partial summary judgment portions of its
response brief to the second motion to include this new
information. Specifically, Bell asks to incorporate:
a. Bell's “Additional material facts preclud[ing]
summary judgment in favor of Westfield, ” Nos. 130 -
134 (Dkt. 189 at 27-28), incorporated into Dkt. 110 at 11;
and
b. The final two paragraphs in Section IV(B)(1)(a) (Dkt. 189
at 34-35) incorporated into Dkt. 110 at 20, at the conclusion
of Section IV(B)[.]
(Filing No. 193 at 4.) Bell asserts that it only
recently discovered this information, and justice requires
that Bell be given the opportunity to fully present its
arguments to the Court.
Westfield
responds that Bell's request to incorporate is untimely,
coming more than seven months after briefing was completed on
the first summary judgment motion. Regarding the requested
incorporation, Westfield argues, “if permitted, the
same would operate to preclude Westfield from addressing
Bell's evidence and legal arguments, even though it has
now done so in its recently filed Reply submissions on
Bell's bad faith claim. See, Dkt. #200 - #204 and
#206.” (Filing No. 215 at 3.) Westfield
asserts that Bell's incorporation would give Bell the
final-and only-word on these new facts and argument as they
relate to the first summary judgment motion, which would
unfairly prejudice Westfield. Additionally, Westfield argues
that the evidence and argument Bell seeks to incorporate are
irrelevant to the first summary judgment motion, which
concerns the interpretation of the insurance policy and which
does not involve consideration of extrinsic evidence.
In
order to manage its docket, to keep the case moving, and in
fairness to the parties, the Court has discretion to allow or
prohibit supplemental materials (in this case incorporation
of later-filed argument and evidence) after summary judgment
briefing is closed. See Pfeil v. Rogers, 757 F.2d
850, 857-58 (7th Cir. 1985) (briefing schedules and local
rules serve “the purpose of properly framing the issues
in allowing the moving party to respond to all of the
resisting party's arguments in its reply brief as well as
allowing the trial court to organize and control its calendar
in an orderly manner”); see also Vance v. Ball
State Univ., 646 F.3d 461, 468-69 (7th Cir. 2011).
In
light of the timing of the parties' discovery efforts and
when Bell discovered this new information, the Court
determines that, out of fairness to Bell to be given the
opportunity to fully present its arguments to the Court,
incorporation is warranted in this case. The Court notes that
this new evidence and argument is already in the summary
judgment record before the Court, albeit under a separate
summary judgment motion. Thus, allowing this incorporation
will not delay the case. Furthermore, the Court is capable of
fairly and accurately reviewing the designated evidence
proffered by Bell to determine what is relevant to the issues
and to determine what the evidence actually says, rather than
a party's representation of that evidence. Additionally,
Westfield noted in its response that it actually did reply to
this new evidence and argument by “its recently filed
Reply submissions on Bell's bad faith claim.”
Therefore, the Court will allow Bell's requested
incorporation into the summary judgment materials for the
“animals exclusion” motion, and, out of fairness
to all parties, the Court also will take into consideration
the submissions that Westfield provided with its Reply Brief
on the bad faith claim. Bell's Motion to Incorporate
(Filing No. 193) is granted.
B.
Bell's Motion to Supplement Appendix (Filing No.
216)
Bell
asks the Court for leave to supplement its designated
evidence in opposition to Westfield's summary judgment
motion on the bad faith claim. In its Reply Brief, Westfield
challenged the authenticity and admissibility of a number of
Bell's response exhibits because they lacked
authentication and a sworn statement. Bell now seeks to
supplement the evidence to submit affidavits that will
provide authentication for the previously-filed exhibits, and
Bell argues there is no real dispute as to the exhibits'
actual authenticity; instead, there is only the missing sworn
statements. Furthermore, some of the documents Westfield
challenges were produced by Westfield to Bell and were relied
upon by Westfield in prior motions practice. Bell asserts
that supplementing the evidence with its affidavits will ...